Munish Kumar And Others vs State Of Himachal Pradesh

Sandeep Sharma, J

Since both the bail petitions arise out of same FIR, both were taken up for hearing together and are being disposed of vide this common judgment.

By way of present bail petitions filed under S. 439 CrPC, prayer has been made for grant of regular bail by bail petitioners namely Munish Kumar

and Rati Ram alias Chindda, who are behind the bars since 26.9.2020 and 3.11.2020, respectively, in FIR No. 212, dated 26.9.2020 under Ss. 20 and

29 of the Narcotic Drugs & Psychotropic Substances Act and Ss. 181 and 196 of the Motor Vehicles Act, registered at Police Station Jogindernagar,

District Mandi, Himachal Pradesh.

Status report filed by the respondent State in terms of orders dated 5.4.2021 and 9.4.2021, reveals that on 26.9.2200, police party present near

Nagchala bridge stopped car bearing registration No.. HP-01M-3270 being driven by bail petitioner Munish Kumar. Bail petitioner Munish Kumar got

perplexed and started making phone calls and in the meantime, a motor cycle bearing registration No.. HP-32B-3310 being driven by Om Parkash

reached near Naka. The driver as well as the pillion rider of the said motor cycle, after having seen the police tried to turn the vehicle but since its

engine stopped, police personal present on the spot, apprehended both the above named persons. After having seen the conduct of the driver as well

as pillion rider of the motor cycle, police deemed it necessary to conduct the search of their persons as well as the motor cycle and allegedly in the

presence of independent witnesses, searched the rucksack being carried by co-accused Ahi Chand and recovered 1.947 kg of charas. Driver as well

as pillion rider of the motor cycle allegedly informed the police that the bail petitioner namely Munish Kumar was driving the car ahead of them so that

he could inform them with regard to Naka, if any, laid down by the Police on the road. Since the persons namely Om Parkash and Ahi Chand, were

unable to render any explanation qua possession of commercial quantity of contraband, police after completion of necessary codal formalities,

registered case against all the four persons including present bail petitioners under Ss. 20 and 29 of the Narcotic Drugs & Psychotropic Substances

Act and they all are behind the bars. Since the Challan stands filed in the competent Court of law and nothing remains to be recovered from the

present bail petitioners, they have approached this Court in the instant proceedings, for grant of regular bail under changed circumstances.

Learned Deputy Advocate General, while fairly admitting the factum with regard to filing of Challan in the competent Court of law contends that

though nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of the offence alleged to have been committed by

them, they do not deserve any leniency. Learned Deputy Advocate General further submits that though nothing came to be recovered from the

conscious possession of the present bail petitioners, but since there is overwhelming evidence available on record suggestive of the fact that both the

bail petitioners, helped and connived with the co-accused Om Parkash and Ahi Chand in procuring commercial quantity of the contraband, prayer

made on their behalf for grant of bail cannot be accepted, who in the event of being enlarged on bail, may not only flee from justice but may also

indulge in such activities again. Lastly, learned Deputy Advocate General submits that one case under the Act ibid already stands registered against

the bail petitioner, Rati Ram as such, he otherwise is not entitled for bail at this stage.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that the precise allegation against the

present bail petitioners is that they helped and connived with the co-accused Om Parkash and Ahi Chand, in illegal purchase and smuggling of the

commercial quantity of contraband. As per prosecution case, bail petitioner namely Munish Kumar was traveling in a car ahead of motor cycle

bearing registration No.. HP-32B-3310, being driven by the co-accused Om Parkash so that he could inform the driver as well as other occupant of

the motor cycle, with regard to presence of police on the road. Allegation against the present bail petitioner Ratti Ram is that he was not only traveling

with the bail petitioner Munish Kumar in the car, but also sold commercial quantity of charas to the person namely Om Parkash and Ahi Chand. It is

not in dispute that the commercial quantity of contraband never came to be recovered from the conscious possession of the bail petitioners namely

Munish Kumar and Ratti Ram. Moreover, there is no dispute that the commercial quantity of contraband was recovered from the rucksack being

carried by co-accused Ahi Chand. Both the bail petitioners came to be named in the FIR on the basis of statement made by co-accused Om Parkash

and Ahi Chand, who allegedly disclosed to the Police that Munish Kumar had gone ahead of them driving vehicle bearing registration No.. HP33C

1820, so that he could inform the driver and other occupant of the motor cycle with regard to presence of the police on the spot. Such fact, if any, is to

be established by the investigating agency by leading cogent and convincing evidence and mere statement of accused may not be sufficient at this

stage to conclude/rule out the complicity of the present bail petitioner Munish Kumar in the commission of alleged offence. Similarly, as per

prosecution story, bail petitioner Rati Ram sold commercial quantity of contraband to Om Parkash and Ahi Chand, but unfortunately, there is no

evidence worth credence available on record at this stage that bail petitioner Rati Ram, sold the contraband allegedly recovered from the conscious

possession of accused Om Parkash and Ahi Chand. Neither there is any Call Detail Record placed on record suggestive of the fact that Om Parkash

and Ahi Chand were in constant touch with the bail petitioner, Ratti Ram nor the police has been able to place on record documents, if any, with

regard to financial transaction, which allegedly took place inter se bail petitioner Rati Ram and Om Parkash and Ahi Chand, from whose conscious

possession, commercial quantity of contraband was recovered. Mere statement of co-accused, especially from whose conscious possession,

contraband came to be recovered, may not be sufficient to conclude complicity, if any, of the bail petitioner rather, factum, if any, with respect to sale

of charas by bail petitioner Rati Ram to other co-accused is required to be proved in accordance with law, by leading cogent and convincing evidence.

No doubt, in the case at hand, commercial quantity of contraband came to be recovered as such, rigours of S. 37 of the Act would apply in the case

at hand, but since there is no concrete evidence to connect the present bail petitioners with the contraband, bail petitions having been filed by the bail

petitioners deserves to be allowed. Otherwise also, bare perusal of provisions of S.37 of the Act nowhere suggests that there is complete bar to grant

bail in cases, where commercial quantity is involved, rather, in such like cases, court after having afforded opportunity to the Public Prosecutor can

grant bail in cases involving commercial quantity of contraband, if it has reasons to believe that the person seeking bail is not guilty of such offence and

is not likely to commit offence while on bail.

Though, aforesaid aspects of the matter are to be decided by learned trial Court, in the totality of the evidence led on record by the investigating

agency, but having taken note of the aforesaid glaring aspects of the matter, there appears to be no reason to let the bail petitioners incarcerate in jail

for an indefinite period during trial, especially when Challan stands filed in the competent Court of law and nothing remains to be recovered from the

bail petitioners.

Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty

in accordance with law. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as

such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be

recovered from them and they are in judicial custody. Apprehension expressed by learned Deputy Advocate General, that in the event of being

enlarged on bail, bail petitioners may flee from justice or indulge in such offences again, can be best met by putting the bail petitioners to stringent

conditions.

Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom

of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex

Court in the aforesaid judgment that a person is believed to be innocent until found guilty.

Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone

cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been

repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount

of bail. The object of bail is neither punitive nor preventative.

In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the

attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is

whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep

in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused,

circumstances which are peculiar to the accused involved in that crime.

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in

mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence

and witnesses being influenced.

In view of above, bail petitioner has carved out a case for himself, as such, present petitions are allowed and the bail petitioners are ordered to be

enlarged on bail, subject to furnishing fresh bail bonds in the sum of Rs.5,00,000/- each with one local surety in the like amount, to the satisfaction of

the learned trial Court, besides the following conditions:

(a) They shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of

hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from

disclosing such facts to the Court or the Police Officer; and

(d) They shall not leave the territory of India without the prior permission of the Court.

(e) They shall surrender passport, if any, held by them.

It is clarified that if the petitioners misuse the liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to

move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of

these petitions alone.

The petitions stand accordingly disposed of.

Copy dasti.